Draft Letter From W. Lee Rawls to Richard Darman, October
1990

A scan of the original document is available for download (PDF, 626 KB, 4pp.)

Source: Department of State, Bureau of Public Affairs, Front Office
Files, 1989-1990 (Lot File 93 D 287), Box 1, PA—Foreign Relations Series 1990.
This draft letter was attached to an October 24, 1990 Legislative Referral
Memorandum on S. 3225 from the Office of Management and Budget to the National
Security Council; the Departments of the Treasury, State, Defense, and Energy;
the Central Intelligence Agency; and the General Services Administration. Within
the Department of State, Will Davis (Bureau of Legislative Affairs) sent this
package to the Bureaus of Legislative Affairs, Management, and Public Affairs
and the Office of the Legal Adviser for comments on October 25, 1990. Neither
the Department’s response to OMB nor the final draft of Rawls’s letter has been
located.

Cited in Toward “Thorough, Accurate, and Reliable”: A History of
the Foreign Relations of the United States Series, Chapter 11, Footnote 41

This letter sets forth the views of the Department of Justice on S. 3225, which
amends the State Department Basic Authorities Act of 1956, as recently passed by
the Senate. See 136 Cong. Rec. §16, 299-301 (daily ed. Oct. 19, 1990). We
believe that certain provisions of this bill present constitutional
difficulties.

Section 47(a) calls for the preparation and publication of “a thorough, accurate,
and reliable documentary record of major United States foreign policy decisions
and significant United States diplomatic activity.” § 47(a)(1). The publication
is to “include all documents needed to provide a comprehensive record of the
major foreign policy decisions and actions of the United States Government.” Id. To assist in the publication project, agencies
would be required to carry out a procedure for declassification of documents. If
an agency determined that a document could not be declassified because of “a
continuing need to protect sources and methods or other national security
information,” the agency would be required to attempt to make such deletions as
would make the document declassifiable. § 47(b)(3)(A). An Advisory Committee,
which would be created under the bill, could direct the agency to prepare a
declassified summary of material so excised if the Committee believed that the
record would otherwise be misleading or incomplete. If the Advisory Committee
disagreed with the agency’s decisions about deletions or the summary, or if the
agency refused to prepare a redacted version of the document or the summary, the
Advisory Committee would report to Congress, and the agency would be required to
respond to the report. The Advisory Committee could also approve the withholding
of documents if, by vote of a majority of its members, it determine that
continued secrecy was necessary to avoid “imped[ing] current diplomatic
negotiations or other ongoing official activities of the United States
Government” or to “condense the record and avoid repetition of needless
details.” § 47(c)(7). Documents of the Department of State would automatically
be declassified 30 years after the events documented unless their release “would
compromise weapons technology important to the national defense of the United
States or provide access by other nations to sensitive weapons design
information relating to United States or foreign military equipment or relating
to United States cryptologic systems or codes,” would create a threat of harm to
living persons who gave confidential information to the United States, or would
“demonstrably impede current diplomatic negotiations or other ongoing official
activities of the United States Government.” § 47(e).

The Advisory Committee would consist of nine “distinguished historians,” of whom
not more than two would be employees of the United States. Members would be
appointed by the Secretary of State, with the advice of the Assistant Secretary
for Public Affairs. The bill would apparently require the Secretary to select at
least one member of the committee from each of the lists prepared by six named
historical organizations. Members would serve for a term of three years. The
Committee would select its own Chairman, who would serve a term of one year. §
47(c).

We have three objections to S. 3225. First, the bill trenches on the President’s
constitutional authority to protect state secrets. Second, it intrudes upon the
deliberative privilege for communications within the Executive Branch. Third,
the bill does not provide for sufficient presidential direction and control over
the operations of the Advisory Committee to be created under the bill.

1. S. 3225 trenches on the President’s constitutional authority both to protect
military, diplomatic, and national security secrets and to safeguard the
deliberative process within the Executive Branch. The Constitution vests in the
President an expansive authority to protect state secrets from disclosure:
The President, after all, is the “Commander in
Chief of the Army and Navy of the United States.” U.S. Const., Art. II, § 2.
His authority to ... control access to information bearing on national
security ... flows primarily from this constitutional investment of power in
the President and exists quite apart from any explicit congressional grant
... . The authority to protect such information falls on the President as
head of the Executive Branch and as Commander in Chief.

Moreover, as a practical matter, while S. 3225 may be intended to provide for the
release only of information other than state secrets, the procedure to be
followed under the bill would create a substantial danger that state secrets
would be revealed. First, in the discharge of the duties committed to him by the
Constitution, the President cannot be bound by Congress’ determination of what
constitutes a secret worthy of protection. There may be unforeseen circumstances
in which the grounds for continued secrecy laid out in the bill would be
insufficient to reach information that the President considered a state secret.
Second, the bill would require the Executive branch to make publication
determinations about a vast body of material on unreasonably short notice. By
its terms, the bill requires the publication of “all documents needed to provide
a comprehensive record of the major foreign policy decisions and actions of the
United States Government” and the “published record shall omit no facts which
were of importance in reaching a decision.” Publication decisions would have to
be made within 60 days after submission of the documents for review. §
47(b)(3)(A). These requirements place an unreasonable burden on the Executive
Branch and creates a substantial likelihood that state secrets will
inadvertently be made public.

2. S. 3225 would also intrude upon the deliberative privilege for communications
within the Executive Branch. That privilege rests on “the necessity for
protection of the public interest in candid, objective, and even blunt or harsh
opinions in Presidential decisionmaking.” United
States v. Nixon, supra, 418 U.S. at 708. As the Supreme Court has recognized, “[a]
President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately.” Id.
The revelation of such communications, even long after the events, would have a
chilling effect on the candor of executive branch officers and employees. If S.
3225 were enacted into law, the President’s advisers would be put on notice that
their advice will one day become public, and they may be less “candid,
objective, and even blunt or harsh” as a result.

3. The operations of the “Advisory Committee” under the bill would also be
unconstitutional because the Committee would not be subject to sufficient
presidential direction and control. The President “may properly supervise and
guide [officers’] construction of the statutes under which they act in order to
secure that unitary and uniform execution of the laws which Article II of the
Constitution evidently contemplated in vesting general executive power in the
President alone.” Myers v. United
States, 272 U.S. 52, 135 (1926). In our view, the power to withhold
documents from publication would be the “the performance of a significant
governmental duty exercised pursuant to a public law.” Buckley v. Valeo, 424 U.S. 1, 141 (1976). Such duties may be
performed only by “Officers of the United States,” appointed in conformity with
the Appointments Clause and subject to presidential direction and control. Id. S. 3225, however, satisfies neither of these
requirements. Notwithstanding that the Advisory Committee has a role in
decisions affecting the national security, S. 3225 appears to contemplate that
the Advisory Committee would operate in a manner bound to frustrate the “unitary
and uniform execution of the laws,” because the Committee would report on
disputes within the Executive Branch over declassification decisions, and the
agencies would then be required to answer the Advisory Committee’s reports.
Furthermore, absent review by principal officers, the members of the Advisory
Committee would themselves be principal officers for the purposes of the
Appointments Clause, and would have to be appointed by the President with the
advice and consent of the Senate. See Morrison v. Olson, 108 S. Ct. 2597, 2608-2609 (1988). The
President has plenary authority to nominate principal officers, subject only to
the advice and consent of the Senate, and the Congress can not dictate the
qualifications of the persons to be appointed or require them to be chosen from
lists provided by specified non-governmental entities. See
Public Citizen v. U.S. Department of Justice,
109 S. Ct. 2558, 2580-2584 (1989) (Kennedy, J., concurring in the judgment).